YEUNG CHUN PONG AND OTHERS v. SECRETARY FOR JUSTICE

FAMC No. 101 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 101 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 102 OF 2005)

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Between:

  YEUNG CHUN PONG 1st Applicant
  TSE MAY WAH 2nd Applicant
  CHIK KAM FAI 3rd Applicant
  and  
  SECRETARY FOR JUSTICE Respondent

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 2 March 2006

Date of Determination: 2 March 2006

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. The two questions certified by the Court of Appeal amount essentially to the same question, which is whether the plea of autrefoisacquit is available in committal proceedings. This question was answered “No” by the Magistrate’s Court in committal proceedingsbut “Yes” by the High Court in judicial review proceedings challenging the answer given by the Magistrate’s Court. Then thematter became academic as between the immediate parties upon the committal proceedings being brought to an end when the prosecutionwas transferred for trial in the District Court where the plea of autrefois acquit is undoubtedly available.

2. Even after the question had thus become academic as between the immediate parties, the Court of Appeal took a policy decision toentertain the question for the sake of the general law. And having done so, they reversed the High Court and answered the question“No”. Then they certified the question for it to be finally determined by the Court of Final Appeal.

3. In the rare instances in which it is appropriate to do so for the sake of the general law, it is not unknown for the Court of FinalAppeal to take on a case even after the question in it has become academic as between the immediate parties. This was done in Prabakar’s case (2003) 6 HKCFAR 397. And, in all the circumstances, we consider it appropriate for it to be done in this case too. Accordingly we extend time and grantleave to appeal to the Court of Final Appeal. It should of course be understood that neither this case nor that of Prabakar detract from the general rule, as a general rule, that the Court of Final Appeal will not hear cases that are academic between theimmediate parties.

(Kemal Bokhary)
Permanent Judge
(Patrick Chan)
Permanent Judge
(R A V Ribeiro)
Permanent Judge

Mr Philip Dykes SC and Mr Philip Wong (instructed by Messrs Lau, Chan & Ko) for the applicants

Mr Kevin P Zervos SC and Mr William Tam (of the Department of Justice) for the respondent